This Master Service Agreement (Agreement) is between Everdata Technologies Pvt. Ltd. (an Indian Company incorporated under laws of India) and Customer and shall individually be called as " Everdata Technologies Pvt. Ltd.", "Customer" and collectively called as "Parties", and is effective as dated on the day of Service taken.
The Parties agree as follows:
The Customer acknowledges that SOF shall be confirmed / completed only once the Customer has accepted the terms mentioned in this Master Service Agreement ("MSA") the Service Level Agreement ("SLA") and the terms mentioned in Acceptable User Policy ("AUP"). The Customer further acknowledges that this MSA shall include the SLA and will bind the Customer to all of the terms and conditions mentioned hereof.
This Agreement covers all the terms and conditions with respect to the Services detailed in the SOF to be provided by Everdata Technologies Pvt. Ltd. through Everdata Data Center and to be received by the Customer. This Agreement shall supersede all prior oral or written agreements, negotiations, discussions between Everdata Technologies Pvt. Ltd. and Customer. Customer acknowledges that all its rights relating to Everdata Data Center are provided under this Agreement and has waived rights, if any, accrued to it by any law for the time being in force.
1. Defined Terms:
Capitalized terms shall have the following meanings or the meanings assigned to them in the other Clauses of the Agreement:
"Agreement" shall mean the Service Order Form (SOF), Master Service Agreement (MSA) and Service Level Agreement (SLA) include Acceptable User Policy (AUP) collectively. Any conflict between the documents shall be resolved by reading the documents in the order mentioned above.
"Affected Party" means the Party claiming the benefit of Force Majeure.
"AUP" shall mean Acceptable User Policy, posted on the Everdata Data Center website, as it may be amended from time to time. Customers would be informed about the changes in AUP within 7 days of the changes made.
"Business Day" shall mean other than public holidays Monday through Saturday excluding second Saturdays.
"Due Date" shall mean the expiry of two days from the date of invoice raised by Everdata Technologies Pvt. Ltd.
"Effective Date" shall mean the day when the SOF is completed in all respects and is accepted along with the MSA and SLA.
"Initial Term" shall mean the minimum term of 12 months wherein the Customer requires the services of the Everdata Data Center.
"INR" shall mean Indian Rupees.
"Renewal term" shall mean similar period as mentioned in the Initial Term which automatically extends after the expiry of the Initial Term unless notice is given by the Customer as mentioned in the clause 19.1 in this agreement to stop the Services at least thirty (30) days prior to expiry of the Initial Term.
"Service" shall mean the hosting service like providing servers, other devices as mentioned in the SOF with all such facilities as detailed in the Service Catalogue and Supplemental Services as may be required by the Customer in writing.
"Service Catalogue" shall contain all or any of services/facilities viz., back any other up facility, dedicated firewall facility, hardware monitoring facility, help desk support, load balance server, network and power uptime, OS management and shared firewall services, described in Annexure A to the SLA which may be availed by the Customer along with the Services as mentioned in the SOF from Everdata Data Center.
"Service Level Agreement" shall mean the Service Level Agreement incorporated by reference in the SOF.
"Service Order Form" shall mean the SOF completed by the Customers shown on the website of Everdata Data Center and accepted by the Customer in accordance with the terms and conditions mentioned in the MSA and SLA.
"Service Commencement Date" shall mean the date Everdata Data Center sends the welcome kit for use in connection with the Services.
"Service Credits" shall mean the credits which the Customer would be entitled to receive, on account of failure of the Everdata Data Center to provide Services as per the standards mentioned in the SLA.
"Supplemental Services" shall mean any other services which are requested in writing by the Customer other than those agreed to be provided by Everdata Data Center as mentioned in SOF.
"Territory" means the territory of India
(a) In this Agreement, the headings are for convenience only and shall not in any way define or limit the scope of this Agreement.
(b) In this Agreement, where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have corresponding meanings.
2. COLLECTIVE DOCUMENTS
2.1 The Parties agree that this Agreement shall be read along with the SLA, AUP and the SOF and all these documents collectively shall cover the Services to be provided by Everdata Data Center and the terms and conditions on which the Services shall be provided to the Customer.
3.1 Everdata Data Center agrees to provide Services along with any of the facilities as mentioned in the Service Catalogue, from the Service Commencement Date in accordance with the terms of the Agreement and may at its sole discretion consider any improvement/enhancement to the Services which may be requested by the Customer.
3.2 Everdata Data Center in addition to the Services provided to the Customer may also provide Supplemental Services or other technical services at Customers request for which fees may be fixed and approved in advance, in writing by the Customer.
4. INITIAL TERM
4.1 The Initial Term for the Services shall commence on the Service Commencement Date.
4.2 On expiration of the Initial Term as mentioned in clause 4.1 the term for providing Services shall be automatically renewed for a similar period as mentioned in the Initial Term upon the same terms and conditions mentioned in this Agreement subject to such changes made by Everdata Technologies Pvt. Ltd. with notice to Customer and referred as Renewal Term.
4.3 In the event the Customer does not wish to avail the Services after the expiry of Initial Term then the Customer shall send a written notice, not limiting to email, at least 30 days prior to the commencement of the Renewal Term in a manner as described in clause 19.1.
4.4 Extended Term
4.4.1 Upon expiration of the first Renewal Term as mentioned in the clause 4.3, any extension of the term for availing the Services from Everdata Data Center shall be made in writing and signed by both the parties in addition to confirmation via email for the term agreed to in accordance with this Agreement.
4.4.2 Any new terms mutually agreed before the commencement of the Extended Term shall be signed and agreed by both the parties and any inconsistency between the terms so agreed before commencement of Extended Term and this Agreement, the terms mentioned in the Extended Term shall prevail.
5. Everdata Data Center RIGHTS AND OBLIGATIONS
5.1 Temporary Suspension of Services:
5.1.1 Customer agrees and accepts that in case Everdata Data Center has reason to believe that for any technical reasons or it becomes necessary to prevent improper or unlawful use of Services or breach of the AUP by Customer or any of its affiliates or any person ("Authorized Person"), Everdata Data Center may consider it necessary to suspend the Services, it may do so for a reasonable number of hours. Such suspension of Services shall not be considered as default on part of Everdata Data Center in providing the Services.
5.2 General Obligation
5.2.1 Subject to the satisfaction of the Service Credit approval criteria as provided in the SLA, Everdata Data Center will provide the Services to the Customer as per the standards as stated in the SLA and any other Supplemental Services as mutually agreed in writing between Everdata Data Center and Customer.
6. CUSTOMER OBLIGATIONS
6.1.1 Customer shall take all reasonable measures to ensure that the information transmitted to or from the servers of Everdata Data Center with respect to the Services required by the Customer are secure and shall not authorize any third person to have any unauthorized access to the servers of Everdata Data Center. Customer may authorize any of its Authorized Person to use the Services only with the prior written consent of Everdata Technologies Pvt. Ltd. Customer must require such person to apply/follow reasonable security measures as would have been followed by Customer itself. Any default on the part of the Authorized Person shall be deemed to be a default by the Customer.
6.2 Compliance with law
6.2.1 Customer shall ensure that it has taken all necessary approvals, licenses from concerned authority(ies) within or outside the territory for availing the Services to be provided by Everdata Data Center. The Customer shall be liable for any default committed by it or by its Authorized Person and the Customer shall be solely responsible for any claims or liabilities that may arise on account of any such default.
6.2.2 Customer using PRI lines on the server will not be using it for any VoIP Service or voice and internet connection. The Customer shall comply with all rules and regulations set forth by the TRAI and DOT as well as Government of India.
6.3 Data Back up
6.3.1 Customer agrees that it shall take all reasonable measures to have its data stored and copied and create a back up, irrespective of any arrangement made with Everdata Data Center for storing/creating back up for its data on the servers of Everdata Data Center.
7. ACCEPTABLE USER POLICY (AUP)
7.1 Customer acknowledges that the AUP of the Services provided by Everdata Data Center is as provided on the website http://www.everdata.com amended from time to time.
7.2 Customer agrees that in manners which does not constitute where the AUP of Everdata Data Center is amended in a way to serve the purpose of the Customer, then the Customer shall issue a written notice as described in Clause 19 mentioning the issues with regard to the new AUP. If the objections raised by the Customer are not acceptable to Everdata Data Center then the Services from Everdata Data Center to Customer will be terminated by Everdata Data Center providing notice as mentioned in the Termination clause 18.104.22.168 herein.
8. SUSPENSION OF SERVICES.
8.1 Customer agrees that the Services as provided by Everdata Data Center may be suspended by giving at least 2 days prior notice under all circumstances, except as mentioned in Clause 4. Everdata Data Center may suspend the Services in cases where:
8.1.1 Everdata Data Center reasonably believes that Services are being used by the Customer in violation of the terms and conditions mentioned in the AUP as amended from time to time.
8.1.2 Everdata Data Center believes that the Services provided by Everdata Data Center to Customer are being used by unauthorized persons without the consent of Everdata Technologies Pvt. Ltd.
8.1.3 In situations where there is no co-operation during investigation of suspected violation of the Agreement.
8.1.4 Protect the servers maintained by Everdata Data Center in the event of immediate threat of breakdown or where there is an apprehension that not suspending the services would cause loss to the other Customers of Everdata Technologies Pvt. Ltd.
8.1.5 In cases where it is required by law.
9. REPRESENTATIONS AND WARRANTIES:
9.1 For Customer:
9.1.1 It has the legal right and authority to enter into the agreement and is not barred by any agency or authority in or outside the Territory to enter into this Agreement.
9.1.2 All the information and disclosures made in respect to this agreement are true and accurate
9.1.3 It has taken all necessary authorizations and approvals for the purpose of execution of this Agreement.
9.1.4 Services required by the Customer and agreed to be provided by Everdata Data Center do not conflict or are not in violation of any law, rules, regulation (s) in force in or outside the Territory.
9.1.5 Customer shall not authorize any third person to have access to the Services unless it is approved in writing by Everdata Technologies Pvt. Ltd.
9.2 For Everdata Technologies Pvt. Ltd.:
9.2.1 It has legal right, authority and authorization to enter into the agreement and to provide the Services as required by the Customer.
9.2.2 Services provided by Everdata Data Center are not in violation of any law or regulation(s) in force.
10. UNAUTHORIZED USE OF SERVICES
10.1 Both Customer and Everdata Technologies Pvt. Ltd. agree that they shall ensure that specific security services such as maintaining fire walls, confidentiality of passwords to the servers, not providing access to the Services to any third party, etc., are maintained and neither party shall breach the same.
10.2 Everdata Data Center shall not be responsible and Customer alone shall be responsible for the unauthorized access provided by Customer or access gained by third person as a result of failure of the Customer to maintain or adhere to the security measures.
11.1 Each party agrees to indemnify the aggrieved party, their directors, employees, agents and contractors against any third party claim arising out of or in relation to infringement of any third party's copyright, trade secret, patent, trade mark or any other proprietary rights.
11.2 Customer agrees to indemnify and hold harmless Everdata Technologies Pvt. Ltd., its directors, employees, agents, contractors and other persons claiming any rights through Everdata Data Center from and against any and all claims, demands, liabilities, obligations, damages, penalties, etc., brought by any third party against the Customers for having used/ availed the Services provided by Everdata Data Center in violation of AUP.
11.3 Customer agrees that it shall indemnify Everdata Technologies Pvt. Ltd. and Everdata Data Center as provided in clause 11.2 above and such indemnification shall not be restricted only to the acts of the Customer but also cover cases where the Services are permitted to be used by the Customer or any Authorized Person.
12. DISCLAIMERS OF WARRANTIES
12.1 Everdata Technologies Pvt. Ltd. and Everdata Data Center does not warrant or represent that the services shall be uninterrupted, error-free, or completely secure. The Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of Customer's privacy, confidential information, and property.
12.2 To the extent permitted by applicable law from time to time, Everdata Technologies Pvt. Ltd. disclaims any and all warranties not expressly stated in the agreement including the implied warranties of merchantability, fitness for a particular purpose, and non- infringement. The Customer is solely responsible for the suitability of the services chosen. All goods and services are provided on an "as is" basis.
13. LIMITATION ON DAMAGES
13.1 Subject to the warranties as mentioned in clause 12 above the Customer shall not be eligible to claim any exemplary damages other than what is mentioned in clause 13.3 herein for any failure on the part of Everdata Data Center to provide the Services and the exclusive and absolute remedy for the Customer is to terminate the agreement.
13.2 Customer agrees that Everdata Data Center shall not be liable for any loss of profits, loss caused to the Customer as a result of use of Services or inability to use the Services unless such loss can be directly attributed to gross negligence of Everdata Technologies Pvt. Ltd.
13.3 Customer agrees that the maximum aggregate liability of Everdata Data Center or any person claiming through them for providing the Services to the Customer as per the standards mentioned in the SLA, shall be limited to the amount not exceeding the amount paid by the Customer to Everdata Data Center for providing Services or as provided in SLA - termed as Service Credits, whichever is lower.
13.4 Neither party shall be liable to the other for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall Everdata Data Center or Customer be liable to the other for any punitive damages.
13.5 Customer agrees that no damages can be claimed with respect to any occurred more than one year to such claims being asserted even that.
14.1 Termination by Customer
14.1.1 Customer can terminate the agreement during the Initial Term if following situations arise:
22.214.171.124 Everdata Data Center fails to provide the Services as agreed and fails to cure the defect within a period of 15 working days from the date of written notice issued by the Customer.
126.96.36.199 Everdata Data Center fails to comply with any other terms, other than providing of Services, as contemplated in the Agreement and fails to cure the defect within a period of 30 days from the date of written notice issued by the Customer.
14.2 Termination by Everdata Technologies Pvt. Ltd.
14.2.1 Everdata Technologies Pvt. Ltd. has the right to terminate the agreement when:
188.8.131.52 Everdata Technologies Pvt. Ltd. reasonably believes that the information provided by the Customer for availing the Services is false or inaccurate or incomplete.
184.108.40.206 Everdata Technologies Pvt. Ltd. believes that the Customer is not authorized or entitled to enter into this Agreement legally.
14.2.1. 3 Any payments to Everdata Technologies Pvt. Ltd. payable which remain unpaid for more than 7 days of date of invoice sent to the Customer through email/ fax/ Postal mail or as provided in the SOF
220.127.116.11 When the Customer fails to comply with the terms of this agreement inspite of having received a written notice to comply/ enforce the same. Provided that nothing in this section applies to termination of Services which are made by the Customer as a result of change in AUP which affects the very purpose for which the Customer has approached Everdata Data Center for Services.
14.3 Termination for convenience
14.3.1 Either party may terminate the agreement only after the Initial Term expires at any time by giving each other 30 days advance written notice.
14.4 EFFECT OF TERMINATION
14.4.1 Termination of this Agreement:
i) Everdata Data Center shall immediately cease to provide the Service(s) to the Customer;
ii) Any and all payment obligations of Customer under this Agreement for Service(s) will immediately become due; iii) Within three (3) days of termination of this Agreement, shall be under an obligation to return all Confidential each Party Information of the other party in its possession without retaining any copies of such Confidential Information except as required to comply applicable legal or accounting record keeping requirement with any.
15.1 Both the Parties agree that neither party would disclose the information which is provided before, during and after the execution of this agreement. Information which includes, prices, quotations, negotiated issues made before the execution of the agreement, server configuration, design and other related information and information relating to the contents to be transmitted to and from the servers of Everdata Data Center information which is verbally stated or conspicuously marked as confidential shall be termed as Confidential.
15.2 Customer agrees not to disclose any of the confidential information exchanged between them and Everdata Technologies Pvt. Ltd. under any circumstances to any third party unless it is so required by law to be disclosed. Any disclosure to be made by the Customer as per the requirements of law shall be so disclosed on providing advance notice to Everdata Technologies Pvt. Ltd. with the reasons for such disclosures.
15.3 Everdata Technologies Pvt. Ltd. reserves the right to disclose the information of the Customer in situations where it reasonably believes that the Services which are being availed by the Customer are used in such a manner which is contrary to the spirit of the Agreement or the law for time being in force. In such situations Everdata Technologies Pvt. Ltd. shall have no option but to disclose such information as required by law giving no prior notice to the Customer.
16. THIRD PARTY PRODUCTS
16.1 Customer agrees that services belonging to it, upon its request Everdata Data Center may provide certain additional third parties products which are not the part of the Services agreed to be provided by Everdata Technologies Pvt. Ltd. Everdata Data Center makes no such representations or warranties whatsoever with respect to such third party products or its merchantability, fitness, etc., and the products are provided in "As Is" basis. Customer's use of such third party products shall not entitle it to have any claim against Everdata Data Center and it shall enforce only those rights as are in the license of the third party product.
17.1 Customer may authorize its Authorized Persons to use the Services only on the prior written approval of Everdata Technologies Pvt. Ltd. On any such approval granted by Everdata Technologies Pvt. Ltd., the Customer shall be responsible for use of Services by such Authorized Person to the same extent as if the Customer itself was using the Services. Everdata Data Center shall provide the Services only to the Customer and not their Authorized Person. There are no third party beneficiaries to this Agreement which means that third parties shall have no right(s) against both the Customer and Everdata Technologies Pvt. Ltd.
18.1 Customer shall pay the fees as mentioned in the SOF and any fees charged for Supplemental Services provided, shall be as agreed to in writing. Everdata Data Center shall send the invoice to the Customer through email/ fax / postal mail as provided in the SOF. First invoice shall include set up fees such as installation and other recurring fees from the Commencement Date till the end of billing cycle as agreed by the Customer. In all cases where the Services are automatically renewed, Everdata Data Center reserves the right to enhance the fees for the Renewal Term by giving a prior notice of at least 7 business days before the expiry of the Initial Term and all such agreed fees shall be paid within 7 days of the date of invoice. Everdata Data Center assumes no responsibility for invoices lost or not received by the Customer.
18.2 Customer shall be required to make the payments for the services as per the option availed by him in the SOF, in full in order to avail the Services, and any Services provided after the expiry of term mentioned in SOF, the applicable fees for such term shall be paid by the Customer in advance or within two days of the invoice date. Customer shall intimate/ inform Everdata Data Center whenever there is a change in telephone numbers or change taking place of Mail IDs as provided in the SOF immediately upon such a change.
18.3 All invoices for the period of Extended Term shall be as in the case of Renewal Term, or any other terms as agreed between the parties in writing.
18.4 Amounts and costs indicated for all Everdata Data Center services are in INR.
18.5 Delays in Payments
18.5.1 Everdata Data Center reserves the right to suspend any or all the Services in case the Customer fails to pay the fees for any month beyond the Due Date of the invoice issued for that month as mentioned in the clause 18.2 above, on issuing a business day’s advance notice to the Customer about the overdue amount.
18.5.2 In the event the Services are suspended in view of the default of nonpayment of fees as stated in 18.5.1 above, and the Customer wants the Services to be restored by Everdata Technologies Pvt. Ltd., an additional amount of Rs.10000 INR along with interest @ 2% per month shall be charged on the outstanding amount. The Customer shall also have to pay reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs, if any.
19.1 All communication by Customer with respect to this agreement should be sent to the Sales Department of Everdata Data Center via electronic mail as shown on the web site and by postal mail to the address as given below Everdata Data Center Address: 372, Shri Gopal Nagar, Gopalpura Bypass Road, Near Gurjar ki thadi, Jaipur (Rajasthan) INDIA AND
19.2 Notice to the Customer shall be sent by Everdata Data Center to the last known address as shown in the SOF or last communication received from the Customer which may be electronic mail, postal address or any other mode which was exercised by the Customer.
19.3 All the notices to the Customer shall be deemed to have been received on the next day of it delivered, or if the day is not a Business day, on the business day following the day on which the notice is delivered.
20. FORCE MAJEURE
20.1 Force Majeure shall mean any event or circumstance or combination of events without limitation to significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry and circumstances which shall materially and adversely affect the performance of the obligations of either party and is not caused by an act of negligence or default of the Affected Party and is not within the reasonable control (directly or indirectly) of the Affected Party
20.2 On the occurrence of Force Majeure neither party shall be in default of any obligation under the Agreement.
21.1 Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property.
21.2 Neither party shall remove or misuse or modify any copyright, trade mark or any other proprietary right of the other party which is known by virtue of this agreement in any circumstances.
22. GOVERNING LAW
22.1 This agreement shall be construed and interpreted in accordance with and governed by the laws of India and the courts at Jaipur, Rajasthan, India shall have jurisdiction over all matters arising out of or relating to this Agreement. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
23.1.1 Customer agrees that they shall not solicit any of the employees of Everdata Data Center who have directly or indirectly worked for providing Services to Customer or its Authorized Person for employment with the Customer up to 12 months from the date of termination of this agreement.
23.1.2 In the event the Customer employs any person contrary to the provision stated in above clause, Everdata Data Center shall be eligible to take action in addition to the rights available to it under law and all other rights as provided under the employment agreement signed by such employee with Everdata Technologies Pvt. Ltd.
23.2 Modification of Services
23.2.1 Customer agrees that any change in the Services other than what is accepted by both the Parties by virtue of SOF and acceptance of MSA and SLA, shall be modified only after a written confirmation is received from Everdata Technologies Pvt. Ltd. on the request of the Customer.
23.2.2 Any modifications accepted by Everdata Technologies Pvt. Ltd. shall carry different fees and amendment of certain terms which may supersede this Agreement. On acceptance of such terms the modifications requested by the Customer shall be brought into force.
23.3 No third party beneficiaries
23.3.1 Customer agrees that irrespective of whosoever the Customer authorizes to use the Services provided by Everdata Technologies Pvt. Ltd., such Authorized Person though eligible to use the Services shall not be entitled to enforce any right or benefits in terms of this Agreement or be in privity to this Agreement with Everdata Technologies Pvt. Ltd.
23.3.2 Customer agrees and acknowledges that it shall be solely responsible/ liable for use of the Services by its Authorized Person to the same Customer to the extent as if he had been using the Service itself.
23.4 Relationship between Parties
23.4.1 The relationship of Everdata Technologies Pvt. Ltd. and Customer created by this Agreement is that of an independent contractor and no partnership is created. Nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other.
23.4.2 Neither party is the agent of the other nor may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive and allows both the parties to conduct its business in a manner that is not against the terms and spirit of this agreement.
23.5 Other charges
23.5.1 In the event Everdata Data Center is obligated or liable to pay any taxes/levies to any governmental/statutory authority for the Services by it on behalf of the Customer, the Customer shall forthwith pay the amount so demanded. In case the Customer is not obligated to pay such amounts it shall provide proof of the same to Everdata Data Center immediately.
23.6 Changes in fees
23.6.1 Everdata Data Center reserves the right to change the fees for Service provided under this Agreement at any time after the period mentioned in the SOF by providing a written notice to the Customer at least 5 days in advance of the effective date of the change.
23.7.1 Both Parties acknowledge that if any provision of this Agreement is unenforceable in any respect, such unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such unenforceable provision had never been contained herein.
23.8.1 The SOF, SLA, Everdata Data Center AUP, and any addendum to this MSA accepted by Customer are hereby incorporated in this Master Services Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the Parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral. IN WITNESS WHEREOF THE PARTIES HERETO AGREE AND ACCEPT THE TERMS OF THIS AGREEMENT AND HAVE EXECUTED THIS AGREEMENT ON THE DATE EXECUTED AS BELOW.
For Everdata Technologies Pvt. Ltd.